Children in Gyms

Question

Could you please tell me, from a legal point of view, what age children can train in the gym? I understand the training principles/prescriptions of training juniors, but am concerned as previous gyms i have worked in didn’t allow under 16's.

Answer:

Regarding children in gyms, many health clubs make a philosophical stand that they want an adult environment and that is why they have a policy of excluding youngsters. There are, however, many more clubs that are starting to incorporate kids programs to get the family more involved in the club - for the health of the family as well as the health of the facility's bottom line!

The primary issues lie in supervision and responsibility.

According to IHRSA public policy statement of 1997 (direct reprint):

Kids in Your Club and the Laws that Protect Them

*An IHRSA Briefing Paper

The United States Consumer Product Safety Commission reports that four million children suffering sport-related injuries are treated in emergency rooms each year, and another eight million are seen by their family physicians. According to the National Youth Sports Safety Foundation, sports injuries are a "major epidemic "in this country -- the second leading cause of emergency room visits. Each season, 39% of boys and 20% of girls participating in organized athletics are believed to be injured. While most of these injuries happen outside of the club setting, IHRSA club operators need to recognize the unique safety and legal issues that arise when dealing with children.

What responsibility is there to supervise children in a club?

When a child is injured in your club, a court will consider whether or not the lack or inadequacy of supervision was the cause of injury. A court will look at whether supervisors were incompetent, absent from the area they were supposed to be monitoring, or unable to watch as many children as were present. When a court finds a breached duty of supervision, the award often exceeds the cost of damages.

The responsibility to supervise varies with the age and maturity of the child. One expert explains that “it is reasonable for a club to prohibit access to certain equipment and activities for those under the age of about 14. Those over 14 years of age but who have not yet reached full maturity need to be supervised while engaged in activity -- but at a more intense and specific level than supervision provided to adults. For those who have reached full maturity (perhaps 16 to 17 years of age), supervision can be rendered under essentially the same system as is provided to adults" (Herbert, David, Esq. “Supervision of Children").

The legal guidelines in this area are vague. The amount of supervision needed in your club is the amount that keeps children from being injured.

Can children be allowed to use equipment such as free weights and resistance machines?

Yes, with precautions. Since the skeletal system is not completely developed in children, they are more vulnerable than adults to injury from improper use of machines or free weights. According to IHRSA's medical advisor, James M. Rippe, M.D., kids can participate in strength training "as long as they don't try to lift the maximum. Children should be instructed and encouraged to lift lighter weights and do more repetition, all under proper supervision" (CBI Dec 1990).

The majority of evidence "points to a conclusion that prepubescent and adolescent resistance training is safe, that it is effective in developing muscular strength and endurance, and that numerous benefits are possible following such training". In fact "so much evidence exists that experts are unwilling to set a definite age limit below which strength training should not be practiced" ("Dispelling the Myths of Children &Weights." Fitness Management June 1996).

At New Mexico Sports and Wellness in Albuquerque, kids ages 13and up are allowed to use weight-training equipment with parental permission, and only after attending a safety training session with a consultant. Kids must then carry a card with them while in the club indicating that they have been trained on the weight equipment.

How can children be safely paired up for sports & games at a club?

Youth participants in contact sports should be paired according to age, maturity, weight, height, and motor skill. Several lawsuits have alleged that uneven pairings of athletes presented an unreasonable risk of harm and were acts of negligence. As a result, care should be taken when dividing students into teams. In a New York case, a young boy was injured during a physical education class game of kickball. The small boy was matched against a six-foot, 180 pound boy, was kicked and suffered a concussion. The court found for the injured boy on the basis of a hazardous contact game with unevenly matched opponents.

Care should also be taken when the supervisor participates in an activity. To be effective, demonstrations should be done at reduced speed and under controlled circumstances. Supervisors should not try to play and supervise an entire group simultaneously. "Playing with the individuals you are supposed to be supervising can only be viewed as a breach of professional responsibility" ("Sport, Physical Activity and the Law".p.637).

How can club operators insure that children use the pool safely?

If you allow children in your pool, it is essential to teach them how to enjoy it safely and provide adult supervision. Cedardale Athletic Club in Haverhill, Massachusetts conducts a Water Safety Program aimed at kids in kindergarten through sixth grade. Each session starts with a viewing of "Longfellow's Whale Tales", a 15-minutevideo from the American Red Cross that teaches rules such as "Reach or throw, don't go" (which cautions children not to go into the water to help someone in trouble). While the program isn't profitable -- the $25 per group fee just covers costs -- it pays off for the club by insuring that youngsters will practice good water safety. Contact your local Red Cross for information about Longfellow's Whale Tales (Course #3407).

Is there a legal duty to provide a lifeguard when kids use the pool?

Courts have not ruled consistently one way or the other. Although clubs may be found liable for drowning of members, guests, or any other person allowed to use the pool, courts have also often refused to impose liability on defendants for failure to provide a lifeguard.

An Alabama court found that even though a child who drowned in a trailer park pool was an invitee, "there is no absolute duty to provide a lifeguard or other supervision at a swimming pool. The lack of a lifeguard is a condition that could have been discovered by reasonable and customary inspection, and no liability will be imposed on the defendant for failing to provide a lifeguard"; The victim's mother had signed the pool rules and indicated that she was aware of the absence of a lifeguard. In addition, warning signs were posted at the pool.

Should I let kids use our hot tubs?

Many clubs allow kids in the pool but not in hot tubs. Kids under 5 years old have underdeveloped thermoregulatory systems, so using spas at temperatures above 102 degrees Fahrenheit may result in brain damage. However, it may be dangerous to allow any children to use hot tubs -- supervised or not. Adults generally enter hot tubs with some awareness of possible health or injury risks, while children may not recognize the dangers.

Hot tubs are so small that all the potential safety problems that arise in pools (diving, roughhousing, disease, etc.) are magnified. The chemical environment of a hot tub is difficult to maintain, even for adults, and kids make it more challenging. Another risk to hot tub users, especially children, is entanglement of hair or body parts in bottom drains. Bottom drains should be covered with protective grates or covers that cannot be removed without the use of tools and should be designed to prevent the entrapment of fingers, toes, and hair.

Can signs prevent injuries and reduce a club's liability?

Yes. Based on a study of spinal cord injuries occurring in pools, a panel of authorities concluded that "the absence of appropriate warnings calling attention to the danger...appeared to be a major contributing factor" in most of the accidents (Swimming Pools: A Guide to Their Planning, Design, and Operation p. 123). There were warning signs pointing out potential danger at only 4 of the 152 accident sites. Clear, bold signs explaining rules and warnings about pool use should be posted at each entrance to every health club's pool.

Should a child sign his or her own waiver of liability?

No. A waiver is a contract in which the signer agrees to waive the right to sue the club, and minors are not bound by contracts. A study of sport-related cases in 16 states involving children and waivers revealed that in every case in which the minor alone signed the waiver, that minor was able to get out of the contract. A child can void a signed contract at any time while under 18 and for a reasonable time after turning 18.

Does a waiver signed by a parent on behalf of a child release the club from liability if the child is injured?

Not always. Waivers signed by parents on behalf of their children have been shown to be ineffective. In 7 of 11 states where the issue was addressed, the child was not bound by the agreement signed by a parent. A parent who signs a waiver for a child gives up the parent's own right to sue, but often this does not waive the right of the child to sue for injury.

In Pennsylvania and Tennessee cases, children were allowed to void waivers which were signed by the parents on behalf of the children. The courts found that parents may not waive the future claims of their children.

In some states, parental consent on behalf of a child in certain legal matters binds the child as though he or she were an adult. The Texas Family Code, for example, authorizes a parent to consent to matters of "substantial legal significance concerning the child". However, it is unlikely that courts would find participation in health club activities to be of "substantial legal significance".

When releases of liability involve activities of "great importance" or "practical necessity" their likelihood of being invalidated increases. For example, the Washington Supreme Court found waivers used in interscholastic sports to be invalid because those activities were "extensively regulated" and "a matter of public importance" In addition, since there were no equivalent alternatives to interscholastic competition for children, the school district possessed "clear and disparate bargaining strength".

On the other hand, Washington courts have upheld waivers signed by parents on behalf of children for scuba diving classes and mountain climbing. This is good news for clubs. Club activities for children are voluntary, have alternatives, and have no impact on a child's grades (as a gym class would) or livelihood (as interscholastic sports may for an exceptional athlete). Therefore, releases signed by parents for health club activities may be more likely to be upheld.

Should a child sign his or her own membership contract?

No. Contracts with children are void or voidable. Courts recognize that children should not be bound by mistakes resulting from their immaturity or the over-bearance of unscrupulous adults.

If a child signs a contract and doesn't cancel it before turning 18, is it automatically a valid contract?

Sometimes. Four state courts have examined whether a contract signed as a minoris binding once the person turns 18.

If a child enters an agreement with a club shortly before becoming an adult, and adheres to the agreement (uses the club) after turning 18, a court may view that as a binding agreement. One court explained, "We are aware of the important policy of this state to protect minors from their imprudent engagements. However, in view of the fact that the plaintiff was (almost of age), and then, subsequent to coming of age, performed acts consistent with her obligation...to rescind this sale would offend justice."

A California court specified that the individual may cancel the contract within a reasonable time of becoming an adult. The court ruled that this may be done by any action or statement and that no explicit notice to the other party (the health club) is required. Similar rulings were made in Colorado, Minnesota and Massachusetts.

If a doctor gives a child the "okay" to use a club, is the club free from liability if the child is injured because of an existing medical problem? Probably. When a physician's exam indicates no physical problem and the instructor has no notice of impaired ability, there is generally no liability for injury resulting from an unknown problem. This was shown in a California case in which a student was playing basketball during a supervised free play period. He understood the game and was considered a good player. During the game, he was hit on the head by a basketball and was seen to stoop over and rub his head. He left the game and was later found unconscious in the locker room. The student was taken to the hospital where he died. The cause of death was a pre-existing cerebral aneurysm. The court refused to hold the instructor or school liable, finding that no one knew or could have been expected to know that the student had an aneurysm.

A more difficult problem arises when a child has a known physical injury. In that instance, the club should require a medical exam before allowing the child to resume the activity. Medical clearance is important because club operators are responsible not only for what they know but also for what they would have known if they had exercised ordinary care.

How else can a club limit liability when children use the facilities?

A signed agreement to participate (or assumption of risk) may limit liability when a child uses your club. This document is different from a waiver (which releases the club from liability in the event of injury) or a parental consent form (which gives parental permission for a child to participate). An agreement to participate informs participants of the nature of the activity, the expected behavior, and the risks involved. In order for a club to prove in court that a participant assumed the risk of an activity, it must show that the participant knew and appreciated those risks. An agreement to participate can also show that the participant was aware of the ways to avoid foreseeable injury.

What are the basic elements of an agreement to participate?

According to Doyice Cotten, Georgia Southern University Professor of Physical Education, an agreement to participate should state:

The nature of the activity:

Describe the activity in detail, including intensity and level of physical stress

Explain the specific skills needed for safe participation

Possible injuries:

Include common accidents that can occur and the resulting injuries (minor and serious ones as well as catastrophic injuries such as paralysis or death)

Don't try to be all-inclusive (use "injuries such as"..." and "including but not limited to")

Behavioral expectations of the participant:

List particularly important rules that contribute to safe participation

The key is to help the participant assume responsibility for the preventionof injuries

The condition of the participant

Affirm possession of physical condition and any requisite competencies tosafely participate in the activity

Ask the participant to list health conditions which may be relevant (such as asthma or a heart condition)

Include a reminder that the participant can and should discontinue the activity if discomfort or stress arises

Conclusion

Participant should acknowledge an understanding and appreciation of the risks involved in activity

Acknowledge the voluntary nature of participation, since the assumption of risk defense requires that an activity be voluntary (a school physical education class would generally not be considered voluntary)

The statute of limitations for negligence claims is usually one to three years after a minor becomes an adult, so keep agreements on file until the participant is at least 21 years old.

An agreement to participate is only effective if the participant understands what is being signed. According to some experts, many participation forms and waivers are difficult for the average person to understand. When any legal forms are used that may be difficult to read, those being asked to sign them should be given an opportunity to have the form read and explained to them and to ask questions. This opportunity should be noted on the form.

How else can club operators insure that children will use a club safely?

According to a New Jersey neurological surgeon, children are more susceptible to sports injuries simply because they don't take the same precautions as adults. "I can't tell you how many cases I've seen where kids dive into a pool with no water"; Educational programs such as Cedardale Athletic Club's water safety courses teach children not to jump into unknown waters, among other things.

Instructors have a duty to provide warnings, explain safety rules, avoid coercion of participants, and outline emergency procedures. Go beyond simple warnings of risk to be sure that specific risks are understood. In one case, an experienced school baseball player was injured while sliding head first into home plate. He was awarded $1.8 million because while his coach had taught him how to slide feet first, he did not warn the plaintiff of the danger of charging into other players head first and did not stress that feet first is the only appropriate way to slide into a base.

DISCLAIMER: The information in this paper is intended for the general education of IHRSA members. It should not be considered legal advice. Club operators needing legal advice should consult an attorney who is qualified inthis area.

Last updated 10/6/97

ADDITIONAL RESOURCES

Waivers &Releases for the Health and Fitness Club Industry: A 50-State Guide for Club Owners and Managers (Second Edition) by Doyice Cotten. Call IHRSA at (800)228-4772 to order ($25 members, $50 non-members); Contains chapter on liability for children in clubs. In IHRSA's Files

“Dispelling the Myths of Children& Weights” by Pam Staver. Fitness Management June 1996.

"Effect of Exculpatory Agreements on Minors and Non-Signing Spouses or Heirs" by Doyice Cotten. Journal of Legal Aspects of Sport 1994.

About the author: Annette Lang

Annette Lang has been in the health and fitness industry since 1983, working in sales, education, management and personal training. She is one of the most sought-after presenters at health and fitness conferences in the US and abroad. She speaks on a variety of topics related to the education of fitness professionals, contributing to the integrity of the personal training business within health clubs. The conference groups include: Perform Better, The American College of Sports Medicine (ACSM), American Fitness Professionals and Associates (AFPA), the National Academy of Sports Medicine (NASM), International Health and Racquet Sports Association (IHRSA), Club Industry, Towne Sports International (TSI) Summit, Reebok International, Sara’s City Workouts and more. In 2005, Annette presented at international conferences in Moscow and Portugal.

Annette is a Reebok University Master Trainer and helped develop Reebok Reactive Neuromuscular Training (RNT), Reebok Core Training, Reebok One to One Flexibility Training and Reebok Deck Training. She presents for Free Motion Fitness exercise equipment and is one of the original authors for www.PTontheNET.com. Annette was on the original team of the Equinox Fitness Training Institute, developing and teaching the nationally recognized education program for Equinox personal trainers.

Annette teaches at numerous health clubs on a regular basis, some of her programs being a standard component of the facilities’ education process. The clubs include Equinox, Crunch/Bally, Wellbridge, NY Health & Racquet and many private facilities. Trainers enjoy Annette’s practical way of teaching, making concepts easy to understand and relating topics to real life training on the gym floor. Annette works as a private trainer in New York City.